Separation of families, church and state, laws and policy

Joseph Garcia
June 15, 2018

U.S. immigration policy and laws have changed over the years – from the 1790 Naturalization Act that allowed only a “free white person” to become an American, to the 1986 Immigration Reform and Control Action that granted citizenship to millions of undocumented immigrants, largely from Latin America.

There have been some tweaks and torques over the last 30 years to federal immigration law and policy. In addition to anti-terrorism measures after the 9/11 attacks, there were stricter immigration measures concerning border control and enforcement, job hiring restrictions and citizenship eligibility requirements.[1]

There also was a major policy shift in 2012 and 2014, however, when President Barack Obama granted protections against deportation for young-adult undocumented immigrants brought to the United States as children.

Obama, whose administration had more deportations than the previous administration of President George W. Bush, expanded Deferred Action for Childhood Arrivals. In addition to protection against deportation, the DACA policy allowed work permits, driver’s licenses and other privileges to so-called “Dreamers.”

But policies and laws are not the same thing.

The DACA policy was not renewed by President Donald Trump, whose administration has taken a zero-tolerance stance for enforcement of illegal immigration laws. This policy includes separating immigrant children from their parents as these families, largely from Central America, who seek asylum at the U.S. borders but not waiting at designated ports of entry due to prolonged waits that could be days or longer.

President Trump claims his hands are tied because of “the law," although it is his administration's zero-tolerance policy that has prompted the surge in separated families at the border. Neither of the two previous presidential administrations sought to separate such families seeking asylum.

U.S. Attorney General Jeff Sessions used the law of the Bible to further justify the removal of toddlers and children from their parents, quoting a passage that previously had been used to support the reasoning for slavery: “I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained the government for his purposes.”

White House press secretary Sarah Huckabee Sanders echoed that sentiment: “I can say that it is very biblical to enforce the law. That is actually repeated a number of times throughout the Bible. It’s a moral policy to follow and enforce the law.”

There is, of course, no law that requires the U.S. government to follow the Bible, or any other religious text or doctrine, for that matter. The constitutional separation of church and state ensures that wall.

There also is no law that requires immigrant families who are seeking asylum by crossing the border illegally to be separated, with the parents automatically declared as “criminals” and immediately sent to federal jail.

Likewise, there is no law that requires thousands of children to be deemed as “unaccompanied minors,” as a result, and warehoused in detention centers that in some cases literally are little more than cages inside an abandoned Wal-Mart. Brothers and sisters are detained in different facilities.

Previously, the policy for such immigration cases was to go through a methodical legal process to determine whether asylum should be considered or granted, but throughout the adjudication there was always the deference for keeping families together, with national and international laws followed.

The current administration’s zero-tolerance policy not only breaks up families, in many cases yanking children out of a parent’s arms, it offers no guarantee that separated families will ever see each other again or know their whereabouts or outcome.

The emphasis here is on the word policy. This is not a law; it’s a policy -- one that could be changed by a single phone call from the president to the DOJ director.

The question that perhaps could be asked is whether this is good policy. The debatable answer naturally varies by politics, perspective, interpretation and intent.

White House Chief of Staff John F. Kelly told NPR that “a big name of the game is deterrence,” and that separating children from parents “could be a tough deterrent” to dissuade other immigrants from bringing their families with them when they claim asylum. Sessions also has touted the deterrence intent.

U.S. Sen. Patrick Leahy, D-Vt., a leading member of the Senate Judiciary Committee, sees the policy differently: “The anguish we are inflicting is evident in the story of each parent who is losing a child – parents who are often from indescribable violence in their home countries. Traumatizing vulnerable children by tearing them away from their parents abandons our history and identity as the humanitarian leader of the world.”

Leahy and other senators are proposing a new law: The Keeping Families Together Act, which would allow children to be separated from their parents only if the children are being trafficked or abused by their parents. Additional layers of protection under the act would include an immediate review by a superior if there were a recommendation to separate, and that could happen only after consultation with a child welfare expert.

Such legislation could go a long way toward distinguishing the differences between law and policy.

[1] Pew Research Center, “How U.S. immigration laws and rules have changed throughout the years,” Sept. 30, 2015

Morrison Institute blogs are intended to further public discourse regarding key and timely issues via diverse voices, expertise and experiences – including, when appropriate, in pro-and-con format. Blogs do not represent any official position of Morrison Institute for Public Policy or Arizona State University.